Citation: R v Bentley; R v Davies; R v Thomas; R v Tilley [2018] NSWSC 175
Court: Supreme Court of New South Wales
Date: 23 February 2018
Judge(s): Harrison J
Background
Four accused faced murder charges arising from the disappearance of the deceased, last seen on 31 March 2015 at South Windsor. The Crown's case was almost entirely circumstantial. It was not in dispute that the accused were involved in moving and disposing of the deceased's body; the live issue was whether any accused committed murder.
A utility vehicle was driven by two of the accused from Sydney to Dorrigo on the New South Wales north coast on 1 April 2015, the day after the deceased was last seen. Eleven days later, on 12 April 2015, two of the accused were recorded by a lawfully installed listening device discussing the cleaning of that vehicle.
One accused, Tilley, applied to exclude the listening device recording. He argued the evidence was irrelevant and that its probative value was outweighed by the danger of unfair prejudice, contending that the conversation's lack of specific detail meant a jury could not use it for any legitimate purpose without descending into speculation.
Legal Issues
- Whether the listening device conversation was relevant to the facts in issue in a circumstantial murder case.
- Whether the probative value of that evidence was outweighed by the danger of unfair prejudice to the accused under section 137 of the Evidence Act 1995 (NSW).
- Whether evidence of post-offence conduct, specifically the apparent thorough cleaning of a vehicle, could constitute consciousness of guilt evidence in circumstances where no forensic evidence directly linked the deceased's body to that vehicle.
Decision
Issue 1: Relevance and probative value
Harrison J found the conversation remained relevant to the assessment of the probability of the existence of facts in issue (at [17]). Probative value is measured by the extent to which evidence could rationally affect that probability assessment; it does not require that the evidence must or will do so (at [6]). The Crown's position was that the conversation, taken with the evidence of the journey to Dorrigo, was a circumstance capable of supporting a reasonably available inference that the vehicle was used to transport the deceased's body (at [8]).
Issue 2: The absence of direct forensic evidence
The court acknowledged that there was no evidence the deceased's body had been located in Dorrigo or along the route, and no confirmed forensic evidence that the deceased's blood was in the vehicle despite a presumptive luminol result (at [9]). However, this did not deprive the evidence of probative value in a circumstantial case where proof of body disposal was one element among several (at [17]).
Issue 3: Consciousness of guilt and unfair prejudice
Harrison J confirmed that post-offence conduct can evidence consciousness of guilt beyond the traditional forms of lying or absconding, and can extend to other conduct such as the apparent thorough cleaning of a vehicle (at [15]). The court rejected the submission that the evidence was "unsafe and circular," finding that no illegitimate reasoning, undue weight, or reasoning logically disconnected from the issues was likely to arise (at [14]). The court also found that no unfair prejudice arises merely from the defence being required to choose between competing forensic possibilities (at [16]). Accordingly, the probative value of the conversation was not outweighed by the danger of unfair prejudice to any accused (at [18]).
Orders Made
- The probative value of the conversation between Davies and Tilley is not outweighed by the danger of unfair prejudice to any of the accused in the trial. The evidence was admitted.
Key Takeaways
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Post-offence conduct capable of evidencing consciousness of guilt is not limited to lies or absconding. Harrison J confirmed it can include other conduct, such as the apparent thorough cleaning of a vehicle shortly after an alleged offence, consistent with the approach in McKey v R and Pollard v R (at [15]).
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In a circumstantial murder case, the absence of direct forensic confirmation linking a vehicle to the deceased does not automatically deprive conversation evidence about that vehicle of probative value, provided the evidence could rationally affect the probability of a fact in issue (at [6], [17]).
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Under section 137 of the Evidence Act 1995 (NSW), unfair prejudice does not arise simply because the defence faces difficult forensic choices. The prejudice must be of a kind that leads a jury toward illegitimate reasoning, undue weight, or reasoning disconnected from the issues in the case (at [14], [16]).
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Where an accused's involvement in disposing of a body is effectively conceded and the live issue is whether the killing amounted to murder, evidence of concealment conduct can still be material. Its significance lies in what it may reveal about the circumstances of the death, not merely the fact of disposal (at [10], [17]).
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A circular reasoning risk does not automatically warrant exclusion. The court found the argument that a jury would impermissibly reason backwards from cleaning conduct to infer a body was present was insufficient, in context, to establish the kind of unfair prejudice that section 137 is designed to address (at [13], [14]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 137
Cases
- Hannes v Director of Public Prosecutions (Cth) (No. 2) (2006) 205 FLR 217; [2006] NSWCCA 373
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317
- McKey v R (2012) 219 A Crim R 227; [2012] NSWCCA 1
- Pollard v R (2011) 31 VR 416; [2011] VSCA 95
- R v Brooks [2017] NSWSC 188
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35